Feldman v. Ukraine Final

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FIFTH SECTION

CASE OF FELDMAN v. UKRAINE

(Applications nos. 76556/01 and 38779/04)

JUDGMENT

STRASBOURG

8 April 2010

FINAL

04/10/2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.



FELDMAN v. UKRAINE JUDGMENT 1

In the case of Feldman v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a

Chamber composed of:Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,

and Claudia Westerdiek, Section Registrar ,Having deliberated in private on 16 March 2010,Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 76556/01 and 38779/04)against Ukraine lodged with the Court under Article 34 of the Conventionfor the Protection of Human Rights and Fundamental Freedoms (“theConvention”) by a Ukrainian national, Mr Boris Mordukhovich Feldman(“the applicant”), on 14 November 2000 and 2 September 2004respectively.

2. The applicant was represented by Mr V.N. Ageyev, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) wererepresented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.

3. The applicant alleged, in particular, that his pre-trial detention had been lengthy and unlawful and that it had not been reviewed speedily. Hefurther alleged that the domestic courts had lacked independence andimpartiality, that his right to defence had been violated and that his

presumption of innocence had not been respected.4. On 15 November 2006 the President of the Fifth Section decided to

give notice of the applications to the Government. It was also decided toexamine the merits of the applications at the same time as their admissibility(Article 29 § 3). On 13 April 2007 the Court put additional questions to the

parties.



2 FELDMAN v. UKRAINE JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and lives in Dnipropetrovsk, Ukraine.

A. Background of the case

6. The applicant was the Vice-President, founder and majorityshareholder of the Bank Slavyansky ( hereinafter – the Bank). On2 February 2000 the State Tax Police instituted criminal proceedings into

tax evasion by the management of the Bank.7. On 10 March 2000 the State Tax Administration instituted another setof criminal proceedings for abuse of office by the management of the Bank.

B. Criminal proceedings against the applicant

8. On 13 March 2000 the applicant was arrested and detained first in thetemporary detention centre (the ITU) and then in the pre-trial detentioncentre (the SIZO) (see below the part on the applicant's pre-trial detention).

9. On 14 March 2000 criminal proceedings were instituted against theapplicant for abuse of office with particularly aggravated consequences.

10. On the same day the State Tax Administration issued a press release,the relevant extract of which reads as follows:

“...During the investigation into a criminal case concerning financial fraud related tothe transfer of significant funds abroad, it was established that the founders andchairpersons of the Bank Slavyansky had abused their power and had increased theinterest rates on their and their relatives' deposit accounts....

... The activities of the above persons were aimed at artificially decreasing theBank's income, which would make it possible to pay less taxes to the State Budget....All these funds were redistributed by the bankers among a narrow circle of chairpersons who were, in fact, the real owners of the Bank...”

11. In April 2000 the Ukrainian News Agency “UNIAN” providedinformation about the session of the Coordinating Committee on CombatingCorruption and Organised Crime. The relevant extract reads:

“It is a matter of honour for the General Prosecutor's Office and the State TaxAdministration to bring the story of the Bank Slavyansky to a logical conclusion” – said the President of Ukraine during his speech at the session... He stated that thechairpersons of the Bank had turned it into a source of uncontrolled personal income.“Such money-makers have powerful patrons, and there is great pressure on theinvestigation”, - mentioned the President.”




12. These statements were reproduced by several Ukrainian newspapers – Pravda Ukrainy , no. 61, 25 April 2000; Kyivskie Vedomosti , no. 90,

22 April 2000; Galitski Kontrakty , no. 36, September 2001.13. On 18 April, 2 and 16 June 2000 the Tax Police instituted three more

sets of criminal proceedings against the applicant and subsequently joinedall these criminal cases against the applicant together.

14. On 21 August 2000 the applicant was formally charged with taxevasion, abuse of power, embezzlement and bribery.

15. On 1 February 2001 the investigation in the case was completed.16. In April 2001 the Radio Svoboda web-site made available recordings

of conversations which had allegedly taken place between the President of Ukraine, Mr Kuchma, and the Head of the State Tax Administration,Mr M. A. There recordings were provided by Mr Melnychenko, whoclaimed to have made them using a digital recorder placed under the sofa inthe office of the President of Ukraine 1. According to these records, thecriminal proceedings against the applicant and the activities of his lawyerswere being closely monitored and an arrangement had been made to securethe applicant's conviction by changing the territorial jurisdiction of the caseto courts in which the applicant had no connections and could not interferewith the proceedings; accordingly, the jurisdiction of the Artemivskiy LocalCourt of Lugansk and the Lugansk Regional Court of Appeal had beenarranged following discussions with the Deputy President of the SupremeCourt of Ukraine, the presidents of the above courts and other judges.

17. On 12 July 2001 the pre-trial investigation was resumed for one dayto include additional materials.

18. On 13 July 2001 the pre-trial investigation was completed and theapplicant was given access to three additional volumes of the case-file.

19. On 1 November 2001 the investigator rejected a motion by theapplicant, who already had several lawyers, to appoint one more lawyer,Mrs K.

20. On 5 November 2001 the Deputy Prosecutor General referred thecase to the Supreme Court of Ukraine. The Deputy President of theSupreme Court of Ukraine referred the case to the Lugansk Regional Courtof Appeal, which in its turn referred it to the Artemivsky Local Court of

Lugansk (“the Artemivsky Court) for examination on the merits. Accordingto the applicant he was not informed about the reasons or legal grounds for choosing the territorial jurisdiction of his case.

21. On 10 December 2001 the trial proceedings commenced. During thehearings the applicant and his lawyers unsuccessfully challenged the judgesof the court on numerous occasions (31 January, 1 February, 22 February,8 April 2002).

1 For further factual circumstances on the matter see Melnychenko v. Ukraine ,no. 17707/02, §§ 7-9, ECHR 2004-X, and also Gongadze v. Ukraine , no. 34056/02, § 138,ECHR 2005-…




22. On 6 February 2002 the prosecutor requested the court to deprive theapplicant and his lawyers of the right to lodge motions. He maintained that

they had been lodging multiple motions, all of which had been rejected inany case, and that the further examination of such motions would therefore

be a waste of time. The court allowed this request.23. On 18 February 2002 the weekly newspaper Business published an

interview with the Presiding Judge L., the relevant extract of which reads asfollows:

“...The lawyers had a hundred motions! And when, so to speak, we were “fed up”with them – we “hurled them back” in some way and said: that's enough!”

Business : Does a court have a right to forbid the lodging of motions in this way?

L.: No, it hasn't. But the trial is [following] a certain sequence, and if one of thestages is delayed and thus the truth is not being established, but its establishment is being obstructed ... we can, roughly speaking, “throw” the lawyers out of the proceedings, but we do not do that. We only stopped their “logorrhoea” and startedthe trial...”

24. According to the applicant's submissions, Judge L. also forbadelawyers to communicate with the applicant in the court room, whereas theywere able to communicate with him fully in the SIZO.

25. On 8 April 2002 Presiding Judge L. interrupted the lawyer F.'sspeech for the defence, which had lasted since 22 March 2002 in sevenconsecutive hearings, and forbade him to continue it. He considered that this

speech was no longer defensive, but “was political and only containedcriticism of the authorities”.26. On 9 April 2002 the court deprived three of the other lawyers, Mr P,

Mr A. and Mrs Y., of the possibility of delivering their speeches for thedefence.

27. The applicant pronounced his final pleadings from 11 to17 April 2002 in six consecutive hearings. On 17 April 2002 the courtinterrupted him and prohibited him from finishing his plea. The court notedthat despite two warnings on 11 and 15 April 2002 the applicant hadcontinued to abuse his right to a last plea by repeating his previousarguments, reading out paragraphs from law textbooks, expressing negative

remarks and threats in respect of the investigators, making politicalstatements and claiming that his case had been specially mounted. The courtalso expelled the applicant from the court room.

28. On 19 April 2002 the Artemivskiy Court convicted the applicant of tax evasion and embezzlement by abuse of power and sentenced him to nineyears' imprisonment. This judgment was challenged before the Lugansk Regional Court of Appeal.

29. During a press conference on 16 May 2002 Mr M. A. announced thatthe audio recordings allegedly made in the President's Office (see paragraph16 above) were false and had been forged at the applicant's instructions. On




16 October 2002 Mr Melnychenko wrote a letter to the KyivShevchenkivskiy District Court (“the Shevchenkivskiy Court”) and the

Head of the Temporary Investigative Commission of the Verkhovna Radaof Ukraine, denying Mr M. A.'s accusations and confirming the authenticityof these recordings. He also stated that he had never met the applicant or received any order on his behalf.

30. On 28 August 2002 the applicant's lawyer challenged the judges of the appellate court.

31. The same day the applicant's lawyer F. was stopped by the tax policewhile driving a car belonging to a Mr K. According to the Government thismeasure was taken in the context of criminal proceedings instituted againstthe above-mentioned Mr K. on 9 April 2002 and in accordance with aseizure order issued by the tax police on 15 April 2002. According to theapplicant, the police took the materials of the file concerning his case fromlawyer F. The Government denied this latter contention.

32. On 3 September 2002 the hearings before the Lugansk RegionalCourt of Appeal (“the Lugansk Court”) took place without the applicant'slawyers Mr F. and Mr A., although the applicant and his lawyer P., who was

present, insisted on their participation. The Court of Appeal also denied theapplicant's right to a final plea.

33. On 14 September 2002 the Lugansk Court upheld the judgment withminor changes and found no procedural breaches in the proceedings beforethe first-instance court. By a separate ruling the court noted that theapplicant's lawyers A. and F. had been breached the code of ethics for lawyers.

34. On 10 March 2004 the Supreme Court of Ukraine acquitted theapplicant of tax evasion, but upheld his conviction for embezzlement byabuse of power. The Supreme Court reduced his sentence to five years'imprisonment. The court found no procedural violations in the proceedings

before the lower courts.

C. Applicant's pre-trial detention

35. On 13 March 2000 the applicant was arrested on suspicion of tax

evasion. In particular, he was suspected of under-reporting the income of the “Ibris Ltd”, where he also worked at that time as a General Director. Hehad allegedly obtained a bank credit and failed to include the amount of thiscredit in the company's gross income for the purpose of the tax declaration.The reason given for the applicant's arrest was the risk of his abscondingand obstructing the course of justice.

36. On 14 March 2000 the Deputy Prosecutor General of Ukraineordered the applicant's detention on remand on the ground that the applicantwas suspected of a serious crime and there were grounds to believe that hemight abscond or obstruct the course of justice. The applicant's detention




was extended on successive occasions by the Deputy Prosecutor General of Ukraine – to four months on 11 May 2000; to six months on 12 July 2000,

to nine months on 13 September 2000 and to twelve months on20 November 2000 on the ground that he was suspected of serious crimesand could abscond.

37. On 16 May 2000 the Kyiv Pecherskiy District Court (“thePecherskiy Court”) dismissed the applicant's application for release, lodged

by his lawyer on 17 March 2000. The court decided that the detention order was well-founded and made in accordance with law. This ruling was notsubject to appeal.

38. On 23 March 2001 the applicant lodged an application for releasewith the Shevchenkivskiy Court. On 27 April 2001 the court dismissed thisrequest, having found that on 1 February 2001 the pre-trial investigation had

been completed, the applicant and thirteen co-accused had been givenaccess to the case-file and the period for consulting the case materials wasstill ongoing. On 13 June 2001 the Kyiv City Court upheld the ruling of 27 April 2001 on cassation. However, on 30 May 2002 the Supreme Courtquashed the decisions of the lower courts under the new cassation procedureand referred the matter for fresh consideration to the first-instance court.The Supreme Court found that the lower courts had not decided on whatgrounds the applicant was to remain in custody after the period of hisdetention under the prosecutors' orders had expired.

39. On 16 August 2001 the Shevchenkivskiy Court dismissed theapplicant's application for release, lodged on 6 August 2001.

40. On 21 August 2001 the Pecherskiy Court allowed the applicant'sapplication for release, lodged on 3 August 2001. The court found that sincethe pre-trial investigation had been resumed on 12 July 2001, the duration of the applicant's pre-trial detention had to be extended by the Supreme Court.As the investigative authorities had failed to seek such an extension, theapplicant's further detention was unlawful and the applicant had to beimmediately released.

41. On 22 August 2001 the applicant, who was about to leave the SIZO,was apprehended again, following an investigator's order within theframework of another criminal case which had been instituted against him

and was later joined to the initial case.42. On 23 August 2001 an investigator of the State Tax Administrationrequested the Shevchenkivskiy Court to order the applicant's detention onremand. The investigator referred to the seriousness of the charges againstthe applicant and the risk of his absconding. In particular, the request stated:

“During the pre-trial investigation Mr Feldman expressed his mistrust in theUkrainian law-enforcement bodies and courts on several occasions, and maintainedthat his case ought to be examined by the European Court alone, and that for this

purpose he had to be outside Ukraine...”




43. On 24 August 2001 the Shevchenkivskiy Court extended the periodof the applicant's detention until 2 September 2001.

44. On 28 August 2001 the Kyiv Court of Appeal quashed the decisionof 21 August 2001 (see paragraph 40 above) on the ground that despite thefact that the prosecutors had extended the applicant's pre-trial detention for twelve months the prosecution had taken only ten months and seventeendays for the investigation. Therefore, in the court's opinion, the reopening of the investigation for one day did not require any new decision on theapplicant's detention.

45. On 3 September 2001 the Business weekly newspaper published aninterview with Mr P., the Head of the Investigation Department of the StateTax Administration. The relevant extract reads as follows:

“Why are Feldman and others detained today? Because Feldman stressed on severaloccasions that he did not trust Ukrainian justice. He considers that in Ukraine he willnot have a fair trial. If he does not trust Ukrainian justice, he will try to find another system. Which one? Outside Ukraine? So how we can release him?”

46. On 19 September 2001 the Shevchenkivskiy Court, following acomplaint by the applicant, found that the applicant's arrest on22 August 2001 had been unlawful. The court established that there had

been no legal grounds for such an arrest and that the suspicion of theapplicant's absconding abroad had been unsubstantiated. The court,however, refused to allow the applicant's claim for immediate release for lack of jurisdiction. This decision was overruled by the Kyiv City Court of

Appeal on 1 October 2001. The appellate court found that the applicant'sarrest on 22 August 2001 had been lawful.47. On 25 September 2001 the Pecherskiy Court examined the

applicant's complaint against the prosecutor's detention order of 14 March 2000 and terminated the proceedings on the ground that the sameissue had been resolved in the decision of the same court of 16 May 2000.

48. On 26 September 2001 the Pecherskiy Court considered theapplicant's complaint against the General Prosecutor's Office and theadministration of SIZO no. 13 in Kyiv concerning his unlawful detentionfrom 31 August 2001 onwards. The court rejected part of this complaint for lack of jurisdiction. On 27 September 2001 the Pecherskiy Court considered

the remainder of the complaint and found for the applicant. It acknowledgedthe unlawfulness of the applicant's detention from 31 August 2001 onwardson the ground that there was no court decision authorising the applicant'sdetention. The court ordered the SIZO to release the applicant immediately

but this decision was not enforced (see next paragraph) and was later overruled by the Kyiv Court of Appeal on 22 November 2001 on the groundthat the first-instance court had applied the provisions of civil and criminallaw together. The decision of the Court of Appeal was also quashed in itsturn by the Supreme Court on 6 November 2002. The case was remitted for a fresh consideration on appeal. On 14 November 2003 the Court of Appeal




quashed the decision of the first-instance court and issued a new decisionrejecting the applicant's complaint against the administration of the SIZO.

On 17 March 2005 the Supreme Court quashed the decision of the Court of Appeal of 14 November 2003 and upheld the decision of the PecherskiyCourt of 27 September 2001.

49. Following the judgment of the Pecherskiy Court of 27 September 2001 ordering the applicant's immediate release (see previous

paragraph), the Deputy Prosecutor General of Ukraine issued on the sameday the “Prescription on elimination of breaches of law” („ Припис про

усунення порушень закону” ), requesting the State Penitentiary Departmentnot to allow the applicant's release from detention on the basis of the abovePecherskiy Court's decision, stating that this decision was unlawful. Theapplicant was not released and the same day an investigator of the State TaxAdministration requested another local court - the Shevchenkivskiy Court toorder the applicant's detention on remand. The investigator referred again tothe risk of the applicant's absconding abroad, formulated in the same way asthe request of 23 August 2001. On the same day the Shevchenkivskiy Courtextended the period of the applicant's detention until 7 October 2001.

50. On 12 December 2001 the trial proceedings commenced and theArtemivskiy Court upheld the applicant's detention on remand, referring tothe seriousness of the charges against him.

51. On 1 February 2002 the court further rejected requests for releaselodged by the applicant's representative during the court hearings.

D. Other events

52. In the context of civil proceedings to which one of the applicant'scompanies was a party, the Tax Administration lodged on 25 January 2007a request for renewal of the time-limit to appeal against the decision of 30 December 2004, of which it was allegedly not aware. The court allowedthe request on 31 January 2007. The applicant considered the renewal as anattempt to exert pressure on him for lodging applications with the Court.

II. RELEVANT DOMESTIC LAW

A. The Law of Ukraine “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” of 1 December 1994

53. The relevant provisions of the Law (first published in the Gazette of the Verkhovna Rada of Ukraine of 3 January 1995, No. 1, article 1) read:




Section 1

“Under the provisions of this Law a citizen is entitled to compensation for damagescaused by:

...

(3) unlawful conduct in the course of search and seizure activities ...

Section 2

“The right to compensation for damages in the amount of and in accordance with the procedure established by this Law shall arise in cases of:

acquittal by a court;

the termination of a criminal case on grounds of the absence of proof of thecommission of a crime, the absence of corpus delicti , or a lack of evidence of theaccused's participation in the commission of the crime;

the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of thissection;

the termination of proceedings for an administrative offence.”

B. The Code of Criminal Procedure

54. The text of Article 120 of the Code of Criminal Procedure of 1960(terms of pre-trial investigation) is summarised in the judgment Merit v. Ukraine (no. 66561/01, 30 March 2004, Relevant domestic law and

practice).55. The texts of Article 156 of the Code of Criminal Procedure (periods

of detention during an investigation) and Article 218 (announcing to theaccused the termination of the investigation in the case and allowing him toinspect the materials in the case file) are summarised in the judgment

Nevmerzhitsky v. Ukraine (no. 54825/00, 5 April 2005, § 53).56. Under Article 37 of the Code of Criminal Procedure a criminal case

is to be examined in a court of the region where the crime was committed. If the place of crime is unknown, the case should be examined by a court of the region where the pre-trial investigation was completed.

57. In order to provide the most effective and full examination of a case,it can, in special circumstances, be referred to a court of the region wherethe accused works or lives, or where a majority of the witnesses are located(Article 38 § 1 of the Code of Criminal Procedure).




58. The question of referring a case from a court in one region to one inanother region is decided by the Head of the Supreme Court of Ukraine or

his Deputy (Article 38 § 4 of the Code of Criminal Procedure).

THE LAW

I. JOINDER OF THE APPLICATIONS

59. Pursuant to Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their common factual and legal background.

II. SCOPE OF THE CASE

60. In his reply to the Government's observations the applicant madeseveral new complaints under Article 5 § 5 and 14 which are not anelaboration of the applicant's original complaints on which the parties hadcommented. The Court considers, therefore, that it is not appropriate now totake these matters up separately (see Piryanik v. Ukraine , no. 75788/01,§ 20, 19 April 2005).

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

61. The applicant alleged that his detention had been unlawful andunreasonably long and that the lawfulness of his detention had not beenreviewed. He relied on Article 5 §§ 1 (c), 3 and 4 of the Convention, which

provides:

“1. Everyone has the right to liberty and security of person. No one shall bedeprived of his liberty save in the following cases and in accordance with a procedure

prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringinghim before the competent legal authority on reasonable suspicion of havingcommitted an offence or when it is reasonably considered necessary to prevent hiscommitting an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within




applicant's detention was in compliance with law. In particular, after theinvestigation in the applicant's case had been completed on

1 February 2001, the applicant and co-accused had been given access to thecase file. The accused and their lawyers had studied the case file until11 July 2001. On 12 July 2001 the investigation was reopened for one dayto admit new materials and on 13 July 2001 the accused were given accessto the case file until 1 November 2001. On 5 November 2001 the case filewas submitted to the court, which held a preparatory hearing on12 December 2001 and, among other things, considered the applicant'sapplication for release. They also observed that, of the statutory twelve-month time-limit for pre-trial detention, the investigative authorities hadused less than eleven months, and noted that the under domestic law the

period taken by the defendant to study the case file was not included in the period of his pre-trial detention.

68. The Court reiterates that the expressions “lawful” and “inaccordance with a procedure prescribed by law” in Article 5 § 1 essentiallyrefer back to national law and lay down an obligation to conform to thesubstantive and procedural rules thereof. While it is for the nationalauthorities, notably the courts, to interpret and apply domestic law, theCourt may review whether national law has been observed for the purposesof this Convention provision (see, among other authorities, Assanidzev. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II).

69. However, the “lawfulness” of detention under domestic law is the primary, but not always the decisive element. The Court must, in addition, be satisfied that the detention, during the period under consideration, wascompatible with the purpose of Article 5 § 1 of the Convention, which is to

prevent persons from being deprived of their liberty in an arbitrary manner.Moreover, the Court must ascertain whether domestic law itself is inconformity with the Convention, including the general principles expressedor implied therein (see Winterwerp v. the Netherlands , 24 October 1979,§ 45, Series A no. 33).

70. Turning to the present case, the Court notes that the applicant's pre-trial detention can be divided into three periods.

71. The first period, covered by the detention orders issued by the

prosecutors, lasted from the day of the applicant's arrest on 13 March 2000until 13 March 2001, when the last extension of the detention ordered by the prosecutor expired (see paragraph 36 above). The Court notes that therewere no court decisions taken as to the applicant's continued detentionduring the above periods. The decisions to prolong the applicant's detentionwere taken by prosecutors, who were a party to the proceedings, and cannotin principle be regarded as “independent officers authorised by law toexercise judicial power” (see Merit v. Ukraine , no. 66561/01, § 63,30 March 2004).




72. The second period, which lasted from 14 March 2001 until12 December 2001, was not covered by any decision ordering his further

detention. The Court notes that no domestic decision was required tovalidate a period of detention during which a person had been given accessto the case file, in accordance with Article 156 of the Code of CriminalProcedure as then in force. Furthermore, the periods of transmittal andtransfer of the case from the prosecutor to the court and back were often notcovered by any decision. The Court further notes that the relevant domesticlaw regulates procedural steps concerning the study of the case file, thecommittal proceedings and transmittals of the case for further investigation,

but does not set clear rules as to which authority may prolong thedefendant's detention, on what grounds and for what term. The Court hasheld on many occasions that the practice of keeping defendants in detentionwithout a specific legal basis or clear rules governing their situation – withthe result that they may be deprived of their liberty for an unlimited periodwithout judicial authorisation – is incompatible with the principles of legalcertainty and protection from arbitrariness, which are common threadsthroughout the Convention and the rule of law (see Svershov v. Ukraine ,no. 35231/02, § 54, 27 November 2008; Solovey and Zozulya v. Ukraine ,nos. 40774/02 and 4048/03, § 72, 27 November 2008 and Khudoyorovv. Russia , no. 6847/02, §§ 146-148, ECHR 2005-X).

73. The third period, which was covered by the above-mentioned courtdecision of 12 December 2001 and several consecutive court orders, startedon 12 December 2001 and ended with the applicant's conviction on 19 April2002. The Court considers that the absence of any precise provisions layingdown whether – and if so, under what conditions – detention ordered for alimited period at the investigation stage could properly be prolonged at thestage of court proceedings does not satisfy the test of the “foreseeability” of a “law” for the purposes of Article 5 § 1 of the Convention (see Baranowskiv. Poland , no. 28358/95, § 55, ECHR 2000-III, and Kawka v. Poland , no.25874/94, § 51, 9 January 2001).

74. The Court observes that under Article 242 of the Code of CriminalProcedure, a domestic court, when committing a person for trial, mustexamine whether the preventive measure that was selected at the

investigation stage is appropriate. The reasons for the preventive measureare required from the court only when it decides to change the measure(Article 244 of the CCP). It does not appear that the court is required to givereasons for continuing a defendant's detention or to fix any time-limit whenmaintaining the detention.

75. The Court further notes that similar situations were previouslyexamined by this Court in other cases against Ukraine and with respect tothe same legal framework. The Court has found the continued pre-trialdetention ordered by the prosecutor and the following period not covered byany order to be incompatible with the requirements of lawfulness under




Article 5 § 1 given that there were no judicial decision ordering suchdetention (see Yeloyev v. Ukraine , no. 17283/02, §§ 45-51,

6 November 2008; Solovey and Zozulya v. Ukraine , cited above, §§ 70-73).As to the consecutive period of detention under the judicial order, the Courtfound that judicial detention orders for indefinite period of time and withoutindication of the grounds for such detention did not afford the applicant theadequate protection from arbitrariness which is an essential element of the“lawfulness” of detention within the meaning of Article 5 § 1 (see Yeloyevv. Ukraine , cited above, §§ 52-55). The Court sees no reason to depart fromits reasoning given in the above-mentioned judgments and concludes thatthere has accordingly been a violation of Article 5 § 1 of the Convention inthe present case.

B. Unreasonable length of detention (Article 5 § 3)

1. Admissibility

76. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore bedeclared admissible.

2. Merits

77. The applicant considered that the investigative measures taken bythe domestic authorities had been excessive and could not justify his lengthydetention.

78. The Government maintained that the length of the applicant's pre-trial detention had been reasonable in view of the complexity of the caseand the large number of investigative measures that had had to be taken.They therefore considered that the domestic authorities had dealt with thecase with due diligence. They also contended that the grounds for theapplicant's detention had been relevant and sufficient because of the seriousrisk of the applicant's absconding, as he had had significant financialresources and many contacts abroad.

79. The Court notes that the applicant was apprehended on13 March 2000. He was sentenced to imprisonment on 19 April 2002, thusthe period of his detention on remand lasted two years and one month,which was not short in absolute terms.

80. The Court notes that the seriousness of the charges against theapplicant and risk of his absconding remained the only reasons for the localcourts' refusals to release him. However, Article 5 § 3 requires that after acertain lapse of time the persistence of reasonable suspicion does not initself justify the deprivation of liberty and the judicial authorities should




give other grounds for continued detention (see, Jablonski v. Poland,no. 33492/96, § 80, 21 December 2000; I.A v. France, no. 28213/95, § 102,

ECHR 1998-VII). Those grounds, moreover, should be expressly mentioned by the domestic courts (see Ilowiecki, cited above, § 61). No such reasonswere given by the courts in the present case. By relying essentially on thegravity of the charges and the risk of absconding, the authorities prolongedthe applicant's detention on grounds which cannot be regarded as “relevantand sufficient”.

81. The foregoing considerations are sufficient to enable the Court toconclude that there has been a violation of Article 5 § 3 of the Convention.

C. Lack of review of the lawfulness (Article 5 § 4)

1. Admissibility

82. The Government considered that the review proceedings had beenconducted with due diligence, with exception of two sets of the

proceedings: the proceedings initiated in March 2001 (see paragraph 38above) and those in September 2001 (see paragraph 48 above), which lastedone year and five months and three years and six months respectively.However, in the Government's opinion although these proceedings couldraise an issue of speediness, they fell outside the scope of Article 5 § 4,since they concerned the period of detention prior to the applicant's release

on 22 August 2001 and, thus, an interruption in the applicant's pre-trialdetention.

83. The applicant disagreed.84. The Court notes that although the applicant's pre-trial detention had

been formally interrupted by the immediate release order, it appears fromthe materials submitted by the parties that the applicant had not been able toregain his liberty on the date mentioned by the Government, since he wasimmediately rearrested by the investigator (see paragraph 41 above).Therefore, there had been no visible signs of a change of the applicant'ssituation during this very short period of formal but not actual liberty.Therefore, the Court concludes that the applicant's detention both prior andafter 22 August 2001 was in reality the uninterrupted period of theapplicant's detention on remand under Article 5 § 1 (c) as a criminalsuspect. The Court therefore rejects the Government's objection.

85. The Court further notes that this part of the application is notmanifestly ill-founded within the meaning of Article 35 § 3 of theConvention. It further notes that it is not inadmissible on any other grounds.It must therefore be declared admissible.




2. Merits

86. The applicant contended that the review proceedings were lengthyand the decisions were unfounded. Even where the courts decided on hisrelease, such decisions remained ineffective due to interference by the

prosecutor's office, which prohibited its enforcement or ordered hisimmediate re-arrest.

87. The Government maintained that the lawfulness of the applicant's pre-trial detention had been reviewed speedily, except the ones initiated inMarch and September 2001.

88. The Court reiterates that Article 5 § 4 of the Convention entitlesarrested or detained persons to a review bearing upon the procedural andsubstantive conditions which are essential for the “lawfulness”, in

Convention terms, of their deprivation of liberty. This means that thecompetent court has to examine not only compliance with the proceduralrequirements of domestic law but also the reasonableness of the suspicionunderpinning the arrest and the legitimacy pursued by the arrest and theensuing detention (see Butkevičius v. Lithuania , no. 48297/99, § 43, ECHR 2002-II (extracts).

89. The Court further reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge thelawfulness of their detention, also proclaims their right, following theinstitution of such proceedings, to a speedy judicial decision concerning thelawfulness of detention and ordering its termination if it proves unlawful

(see, Baranowski v. Poland , no. 28358/95, § 68, ECHR 2000-III).90. In the present case, the applicant's requests for release, lodged on

17 March 2000, 23 March, 3 and 6 August 2001 were examined on27 April, 16 May, 16 and 21 August 2001 respectively. Thus they weredealt within periods of sixty, thirty-five, eighteen and ten days respectively.The Court finds that the applications for release introduced by the applicantwere not examined “speedily” as required by Article 5 § 4 (see Kademv. Malta , no. 55263/00, §§ 41-45, 9 January 2003, and Rehbock v. Slovenia ,no. 29462/95, §§ 82-86, 28 November 2000). Moreover, even in thosesituations when the courts ordered the applicant's release, such releaseorders remained ineffective either due to the applicant's immediate re-arrestsor an objection by the prosecutor (see paragraphs 41 and 49 above). In theCourt's view, there was thus no adequate judicial response to the applicant'scomplaints, contrary to the requirements of Article 5 § 4.

91. The Court considers that there has accordingly been a violation of Article 5 § 4 of the Convention.




IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

92. Referring to Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention,the applicant complained that he had not had a fair trial, that the domesticcourts lacked impartiality and had violated his procedural rights and that his

presumption of innocence had not been respected as a result of thestatements published in the media (see paragraphs 10, 11 and 12 above).The relevant parts of Article 6 provide:

“1. In the determination of ... any criminal charge against him, everyone is entitledto a fair ... hearing ... by an independent and impartial tribunal established by law...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or,if he has not sufficient means to pay for legal assistance, to be given it free when theinterests of justice so require...”

A. Admissibility

93. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore bedeclared admissible.

B. Merits

1. Independence and impartiality of the tribunal (Article 6 § 1)

94. The applicant maintained that the reasons given by the Governmentfor changing the jurisdiction in his case had never been set out in anyofficial documents and they had not been among the reasons foreseen by thelaw for changing jurisdiction. He considered that the recordings made in thePresident's Office confirmed that a conspiracy against him was the onlyreason for sending his case for consideration to the Lugansk Region, andthat such records confirmed that the Lugansk courts had been biased fromvery beginning.

95. The Government reiterated the guarantees of independence of judges provided for in the Ukrainian legislation. They further contended that therewere grounds for changing the territorial jurisdiction of the applicant's case,given his possible influence on different officials in Zaporizhzhya Region,




Dnipropetrovsk Region and the Autonomous Republic of Crimea. They alsomaintained that the applicant's challenges of judges were not founded.

96. The Court reiterates that in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia , to the existence of safeguards against outside pressuresand the question whether it presents an appearance of independence (see,among many other authorities, the Findlay v. the United Kingdom judgmentof 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, ...).

97. As to the condition of “impartiality” within the meaning of that provision, there are two tests to be applied: the first consists in trying todetermine the personal conviction of a particular judge in a given case andthe second in ascertaining whether the judge offered guarantees sufficient toexclude any legitimate doubt in this respect. The Court considers that onlythe second of these tests was relevant in the instant case (see, mutatismutandis , Gautrin and Others v. France , 20 May 1998, § 58, Reports1998-III, ).

98. In the instant case, the Court notes that despite the strict rules on thecourts' territorial jurisdiction set up in the CCPU, the decision to send theapplicant's case to the Artemivsky Court was not justified by any of theserules. It does not appear from the materials of the case that the applicant wasnotified about the reasons or legal grounds for choosing the territorial

jurisdiction in his case. The Court further notes that the applicant's fear as tothe bias of the domestic courts in his case had been further supported by the

public statements made by the President and the Tax Administration (see paragraphs 10 and 11 above) and the actions taken against his lawyer (see paragraph 31).

99. Finally, the Court notes the applicant's arguments that according tothe audio-recording of President Kuchma's conversations, the domesticcourts were not impartial and independent. The Court considers that it doesnot need to have regard to these controversial recordings as the other materials available to it are sufficient to conclude the applicant's fears thatthe domestic courts lacked impartiality can be held to be objectively

justified.100. There has accordingly been a violation of Article 6 § 1 of the

Convention.2. Presumption of innocence (Article 6 § 2)

101. The applicant maintained that publications in the media about himhad not respected his presumption of innocence.

102. The Government maintained that the publications in questionconcerned an important topic of general interest and no names werementioned in the above publications.

103. The Court notes that the public statements made by the Presidentand the Tax Administration concerning the applicant's case were part of the




reasoning for concluding that the applicant had not had a fair trial by theindependent and impartial tribunal (see paragraph 98 above). Therefore, the

Court does not find it is necessary to examine this issue separately under this head.

3. Right to defence (Article 6 § 3 (c))

104. The applicant maintained that the interference with the work of hisdefence team was in breach of his rights.

105. The Government noted that the applicant was not deprived of theright to lodge motions in the courts. They further contended that the courthad given the applicant ample opportunity to deliver his final plea and thatthe interruption of his speech had been justified. They also maintained that

the applicant had access to his lawyers in the detention centre and that thelimitation on communication between the applicant and his lawyers in thecourtroom had been justified. They submitted that the incident when theapplicant's lawyer F. was stopped by the police had no relevance to theapplicant's case, and had been conducted in the framework of a separateinvestigation concerning the car's owner.

106. The Court notes that the actions taken against the applicant's lawyer were part of the reasoning for concluding that the applicant had not had afair trial by the independent and impartial tribunal (see paragraph 98 above).Therefore, the Court does not find it is necessary to examine this issueseparately under this head.

V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

107. Referring to the request for his arrest by the State TaxAdministration, the interview with the Head of its Investigation Departmentand the reopening of the civil proceedings to which one of the applicant'scompanies was a party (see paragraphs 42, 45 and 52), the applicantcomplained that the authorities had justified the detention by his intention tosubmit an application to the Court and thus urged him to withdraw hisapplication. The applicant further complained that renewal of the

proceedings in the civil case had been made with the same purpose. Hereferred to Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmentalorganisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocolsthereto. The High Contracting Parties undertake not to hinder in any way the effectiveexercise of this right.”




A. Parties' submissions

108. The Government maintained that the formulation used by the law-enforcement authorities concerned the assessment of the risk of theapplicant's absconding and was by no means aimed at preventing hislodging of an application with the Court. They noted that the domesticcourts had not expressed any opinion to the effect that the applicant'sdetention was necessary for to prevent him from communicating with theCourt. Furthermore, there was no indication that the applicant's right toindividual petition had ever been impaired by the domestic authorities. Thefact that the applicant had maintained communication with the Courtdemonstrated that there was no such intention.

109. As to the applicant's additional complaint about the renewal of proceedings in the civil case concerning one of his companies, theGovernment considered that it had no relevance to the present case and thatthe applicant failed to demonstrate any such link.

110. The applicant considered that the domestic authorities had clearlyexpressed their positions that the reason for his detention was his attempt toaddress international tribunals (which could be only the European Court of Human Rights).

B. General principles

111. Under the Court's case-law, a complaint under Article 34 of theConvention is of a procedural nature and therefore does not give rise to anyissue of admissibility under the Convention (see Cooke v. Austria ,no. 25878/94, § 46, 8 February 2000, and Ergi v. Turkey , 28 July 1998,§ 105, Reports 1998-IV).

112. The Court reiterates that Article 34 of the Convention imposes anobligation on a Contracting State not to hinder the right of individual

petition. While the obligation imposed is of a procedural nature,distinguishable from the substantive rights set out in the Convention andProtocols, it flows from the very essence of this procedural right that it isopen to individuals to complain of its alleged infringements in Convention

proceedings (see Manoussos v. the Czech Republic and Germany (dec.),no. 46468/99, 9 July 2002). The Court also underlines that the undertakingnot to hinder the effective exercise of the right of individual application

precludes any interference with the individual's right to present and pursuehis complaint before the Court effectively (see, among other authorities andmutatis mutandis , Akdivar and Others v. Turkey , 16 September 1996,

Reports 1996-IV, § 105; Kurt v. Turkey , 25 May 1998, Reports 1998-III,§ 159; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Şarlıv. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey ,no. 25656/94, 18 June 2002).




113. The Court further reiterates that it is of the utmost importance for the effective operation of the system of individual petition, guaranteed by

Article 34 of the Convention, that applicants or potential applicants should be able to communicate freely with the Court without being subjected toany form of pressure from the authorities to withdraw or modify their complaints (see the paragraphs, cited above, of the Akdivar and Others and

Kurt judgments). In this context, “pressure” includes not only directcoercion and flagrant acts of intimidation, but also other improper indirectacts or contacts designed to dissuade or discourage applicants from pursuinga Convention complaint (see the above-mentioned Kurt and Şarlı cases,§§ 160 and 164, and §§ 85-86 respectively).

C. Court's assessment114. The Court notes that the applicant did not allege that he had ever

been questioned by the authorities concerning his application lodged withthe Court. Nor did he present any proof that the domestic authorities hadever prevented his communicating with the Court at any stage of the

proceedings. In the Court's opinion, it is regrettable that a mention of theCourt appeared in the context of the investigator's request that the courtorder the applicant's arrest, but the Court is not persuaded that the wordingof the above request, apart from expressing the fears that the applicantmight leave the territory of Ukraine, suggests also a link between the fact

that he had lodged an application with this Court and the necessity to detainhim, (see paragraph 42 above). The other arguments presented by theapplicant concerning the conduct of the domestic authorities (see paragraphs45 and 52), which he interpreted as interference with his right to individual

petition, are even more tenuous.115. The Court considers that Ukraine has not failed to comply with its

obligations under Article 34 of the Convention.

VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

116. The applicant made a number of other complaints referring toArticles 3, 6, 7 and 8 of the Convention, and Article 2 of Protocol No. 7.

117. The Court has examined the remainder of the applicant'scomplaints as submitted by him. However, in the light of all the material inits possession, and in so far as the matters complained of were within itscompetence, the Court finds that they do not disclose any appearance of aviolation of the rights and freedoms set out in the Convention or itsProtocols.

118. Accordingly, it rejects this part of the application in accordancewith Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.




VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

119. Article 41 of the Convention provides:“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction tothe injured party.”

A. Damage

120. The applicant claimed 437,019,230 euros (EUR) in respect of pecuniary damage and EUR 5,000,000 in respect of non-pecuniary damage.

121. The Government considered that there was no causal link betweenthe pecuniary damage claimed and the violations alleged. They further considered the claim for non-pecuniary damage unsubstantiated.

122. The Court notes that where an individual, as in the instant case, has been convicted by a court in proceedings which did not meet theConvention requirement of fairness, a retrial, a reopening or a review of thecase, if requested, represents in principle an appropriate way of redressingthe violation (see, Nadtochiy v. Ukraine , no. 7460/03, § 55, 15 May 2008).Therefore, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for the violation of Article 6. As to the other violations found, the Court does not discern any causal link between these

violations and the pecuniary damage claimed. At the same time, the Courttakes the view that the applicant has suffered non-pecuniary damage as aresult of the violations of Article 5. Making its assessment on an equitable

basis, as required by Article 41 of the Convention, the Court awards theapplicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

123. The applicants also claimed UAH 456,261,500 (EUR 66,238,131.87) for costs and expenses.

124. The Government considered that the applicant failed to demonstratethat the claimed costs had been reasonable and had actually occurred.

125. According to the Court's case-law, an applicant is entitled to thereimbursement of costs and expenses only in so far as it has been shownthat these have been actually and necessarily incurred and were reasonableas to quantum. In the present case, regard being had to the information in its

possession and the above criteria, the Court rejects the claim for costs andexpenses.




C. Default interest

126. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, towhich should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints under Article 5 §§ 1, 3 and 4 and Article 6 §§ 1(courts' impartiality), 2 and 3 (c) of the Convention admissible and theremainder of the complaints inadmissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;



5. Holds that there has been a violation of Article 6 § 1 of the Conventionconcerning the lack of impartiality of the domestic courts;

6. Holds that it is not necessary to examine separately the applicant's

complaint under Article 6 § 2 of the Convention;

7. Holds that it is not necessary to examine separately the applicant'scomplaint under Article 6 § 3 of the Convention;

8. Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention;

9. Holds(a) that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance withArticle 44 § 2 of the Convention, EUR 8,000 (eight thousand euros),

plus any tax that may be chargeable, in respect of non-pecuniarydamage, to be converted into Ukrainian hryvnias at the rate applicable atthe date of settlement;(b) that from the expiry of the above-mentioned three months untilsettlement simple interest shall be payable on the above amount[s] at arate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10. Dismisses the remainder of the applicant's claim for just satisfaction.




Done in English, and notified in writing on 8 April 2010, pursuant toRule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek P eer LorenzenRegistrar President

Feldman v. Ukraine Final

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